The transition to surrender procedures based on a European Arrest Warrant

1
The transition to surrender procedures based on a
European Arrest Warrant

• Wouter van Ballegooij LLM
• TMC Asser Instituut
• The Hague

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Introduction

• Objectives
• Provide an overview of traditional extradition
  procedures (based on European Convention on
  Extradition 1957 and Dutch Extradition Act)
• Introduce surrender procedures based on a
  European Arrest Warrant in accordance with the
  aims and scope of the Framework decision on the
  European Arrest Warrant
• Illustrate problems that remain to be solved by
  judicial authorities
• Explain the aims of the www.eurowarrant.net
  project

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European Arrest Warrant

• European Arrest Warrant form sent by a
• judicial authority in Member State A to a
• Judicial authority in Member State B to
• obtain the surrender of a suspect or
• convicted person in Bs jurisdiction
• Tool to simplify and expedite Extradition, which
• is renamed Surrender in the Framework decision
• on the European Arrest Warrant and surrender
• procedures in the Member States

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Extradition

• Extradition the removal of a person from State
  A with the object of surrendering him to State B
  for the purpose of a criminal investigation
  concerning him in State B or of enforcing a
  penalty or measure imposed on him in State B.

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Extradition

• Most countries demand a Extradition Treaty
• Extradition can be based on bi- or multilateral
  treaties (1957 European Convention on Extradition
  being the most important).
• In the Netherlands the Framework decision on the
  European Arrest Warrant has been construed as a
  measure implementing the European Union Treaty.

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Extradition

• Extradition in the Netherlands involves courts as
  well as administrative authorities.
• Two stages
• Judicial stage admissibility
• Political stage actual granting of extradition
  request by Minister of Justice

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Extradition

• Judicial stage
• gtreceipt of extradition request by Netherlands
  Ministry of Justice
• gtrequest is forwarded to public prosecutor of the
  Court district where the person remains
• gtIn case the requested person opposes
  extradition
• gtDistrict Court hears the requested person and
  public prosecutor on the extradition request

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Extradition

• The Court checks
• Mistaken identity or it has become manifest that
  the requested person cannot possibly have
  committed the offence
• Lapse of time it has been established beyond
  reasonable doubt that legal obstacles prevent the
  requesting state from successfully trying the
  person.

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Extradition

• Double Criminality the act for which extradition
  has been granted constitutes an offence according
  to both the requesting and the requested state.
• gtQualified double criminality the offence should
  be punishable under the law of both the
  requesting and requested State by a custodial
  sentence of at least one year

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Extradition

• Double criminality (ctd.)
• The Court bases itself on the facts contained in
  the extradition request.
• The question is whether, assuming these facts to
  be true, they may come within reach of a
  provision of Dutch law declaring similar
  behaviour to be a criminal offence
• Singemäße Umsetzung des Tatbestandes

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Extradition

• Ne bis in idem
• Proceedings for the same offence are pending,
  have been discontinued and have ended in a final
  verdict.
• Many problems with the concept. Is smuggling
  drugs from Holland to Belgium different from
  importing drugs to Belgium? What is to be
  understood under final verdict? (the latter
  issue was resolved by the European Court of
  Justice)

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Extradition

• Human Rights Conflicting treaty obligations
  duty to extradite versus the duty to uphold human
  rights (European Convention on Human Rights).
• The European Convention may stand in the way of
  extradition if there is a real risk that the
  person sought would suffer a flagrant denial of a
  fair trial in the requesting state (taken from
  ECHR in Soering versus UK).

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Extradition

• If, however, that State is a party to the
  European Convention is must be assumed that it
  will honour its obligations under the Convention
  unless the perons sought is able to show that
  this is not or will not be the case
• The Supreme Court points to the fact that the
  individual can appeal to the ECHR after trial in
  the requesting State.

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Extradition

• Guarantees
• In absentia trials extradition for the purpose
  of enforcing a judgment rendered in absentia
  shall be granted only if the person claimed has
  had or will still be given an adequate
  opportunity to defend himself in person.
• Nationals Dutch nationals will only be
  extradited to State that guarantee their return
  to serve their sentence in the Netherlands.

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Extradition

• The decision of the District Court may be
  appealed to the Supreme Court by the requested
  person or the public prosecutor.
• Administrative stage
• If the Court finds the extradition inadmissible
  the Minister of Justice has to refuse surrender
• If the Court finds the extradition admissible,
  the Minister of Justice has to decide whether to
  actually grant extradition based on his own
  considerations and the issues raised in the Court
  decision.

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Extradition

• The Minister considers human rights, hardship.
• Under the Civil Code, the requested person may
  approach a District Court for an injunction
  ordering the government not to surrender him.

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Extradition

• Weaknesses in the extradition system
• 1957 European Extradition Convention allows for
  possibility to enter reservations
• gtlead to the non-extradition for political
  offences, often people accused of taking part in
  acts of terrorism
• gtmany countries did not allow the extradition of
  their nationals
• The extradition procedure is/was long and
  bureaucratic (Public Prosecutor Agt Minister of
  Justice AgtMinister of Justice BgtPublic Prosecutor
  BgtCourt BgtMinister of Justice B gtCourt II B)

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Extradition

• The problem was exacerbated by the removal of the
  internal borders in the context of the
  development of the European Communities internal
  market programme.
• It was now easier for suspects and convicted
  criminals to move across Europe's borders.

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Extradition

• Attempts were made to simplify and expedite
  extradition in two EU Conventions on Extradition
  (1995 and 1996).
• They were slowly ratified and many reservations
  (to the extradition of nationals in particular
  were entered)

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Treaty of Amsterdam

• The recognition that were part of a single law
  enforcement area (the area of freedom, security
  and justice).
• This calls for enhancement of judicial
  cooperation in criminal matters. In 1999 European
  leaders decided the best way would be mutual
  recognition of judicial decisions, provided human
  rights are ensured.

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Surrender

• What does mutual recognition entail in principle
• You accept the warrant for arrest issued by your
  colleague in the other Member State as equal to
  an arrest warrant issued in your own Member State
• Therefore, if something is a criminal offence
  there, you should surrender the person, provided
  his rights are ensured.
• However, you trust these rights will be ensured
  since all Member States of the European Union are
  party to the European Convention on Human Rights.

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Surrender

• The European Commission drafted a Programme of
  measures implementing mutual recognition of
  judicial decisions (January 2001). Mutual
  recognition is made dependent upon
• The definition of minimum common standards
  necessary to facilitate application of the
  principle of mutual recognition
• Mechanisms for safeguarding the rights of third
  parties, victims and suspects
• Whether enforcement of the decision is direct or
  indirect and the definition and scope of a
  validation procedure if any
• Determination and extent of grounds for refusing
  recognition, where those grounds are the
  sovereignty or other essential interests of the
  requested State or relate to legality.

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Surrender

• Mutual recognition of arrest warrants was speeded
  up after 9/11 in order for there to be a quick
  system for surrendering terrorists
• Main changes introduced
• 1. Direct contacts between judicial authorities
  (called the issuing and the executing
  judicial authority). The administration is no
  longer involved in the procedure itself. It
  merely provides assistance where necessary.

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Surrender

• 2. A granting procedure is maintained. However,
  the procedure is significantly expedited. A
  decision on surrender should be taken within a
  maximum of 60 plus 30 90 days.
• 3. The double criminality test no longer applies
  to 32 categories of crime
• 4. A standard European Arrest Warrant form is to
  be used.

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Surrender

• Problems
• Should the issuing judicial authority provide the
  executing judicial authority with a full
  description of the facts underlying the surrender
  request, even if it concerns one of the 32
  categories of crime?
• May the executing judicial authority check
  whether the issuing judicial authority was
  reasonable in qualifying certain acts as a
  category of crime mentioned on the list?

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Surrender

• Can the executing judicial authority refuse
  surrender for acts that are not punishable under
  its own jurisdiction?
• How should the executing judicial authority deal
  with human rights concerns?
• Who is the judicial authority anyway?

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Surrender

• Problems are exacerbated by divergent
  implementation
• European Community Law gt Directive
• The European Commission can take action against
  Member States for failing to implement provisions
  of a directive
• It is possible for Courts to ask preliminary
  questions on how certain provisions of directives
  are to be understood
• Citizens can rely directly on provisions of
  directives in case they are sufficiently clear

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Surrender

• European Union (intergovernmental) police and
  judicial cooperation in criminal mattersgt
  framework decision
• Commission has no right to bring an infringement
  action
• Not all Member States allow their courts to ask
  preliminary questions to the Court of Justice in
  Luxembourg
• Citizens may not directly rely on provisions of
  framework decisions.

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European Arrest Warrant project

• We have divergent implementation of the framework
  decision on the European Arrest Warrant.
• A judicial authority in Holland f.i. does not
  understand the surrender procedure and its
  background in France
• Neither does it have access to case law in which
  the national provisions are elaborated.

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European Arrest Warrant Project

• The substantive elements of the 32 categories of
  crime have not been harmonized.
• Minimum standards concerning the rights of the
  defence have not been adopted. Suspects and their
  council need to be made aware of their rights
  under the various legal systems.

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European Arrest Warrant project

• Setting up a network of experts
• Providing an overview of surrender procedures in
  the 25 current Member States, the acceding States
  (Romania and Bulgaria), Croatia, Switserland,
  Norway and Iceland.
• Providing summaries of important national
  surrender decisions (with full text adopted)
• Providing comments, analysis and best practices
  based on comparative research
• Results to be published on www.eurowarrant.net